Burger seeks larger role for state courts

December 30, 1985

By Curtis J. SitomerStaff writer of The Christian Science Monitor

Boston

Chief Justice Warren E. Burger's latest call for judicial reform takes on special significance in light of the current national debate over US courts and judges. Mr. Burger, in his year-end report issued today, asks for a broad-based reexamination of the federal judicial system. He suggests that a top-level commission -- comprising members of the executive, legislative, and judicial branches of the government -- be set up ``to evaluate and report on the needs and functions of the federal court system for this generation and the next.''

The chief justice also renews earlier requests for structural changes in the judiciary which would relieve the Supreme Court of some of its caseload and in certain instances place a greater burden on state courts.

These suggestions come at a time when major controversy over the courts has surfaced between conservatives and liberals.

Attorney General Edwin Meese III has sharply criticized the federal judiciary, particularly the Supreme Court, for overstepping its bounds. He accuses the court of making decisions with broad social implications that are binding on the states. He has been particularly vocal on abortion, urging Mr. Burger's court to reverse its earlier position and to allow states more leeway in outlawing abortion if they so desire.

The attorney general also raises a more basic question: was it the ``original intent'' of the Founding Fathers to strictly apply the federal Bill of Rights to the states?

This has sparked heated argument, with civil libertarians charging that Mr. Meese wants to turn back the clock on a century of civil-rights litigation and legislation. Conservative supporters of the Justice Department chief insist, however, that it is time to rein in broad interpretations of the Constitution made by liberal judges in the l960s and l970s and to more strictly interpret the language of the Constitution.

At least two of Mr. Burger's Supreme Court colleagues, Associate Justices William Brennan and John Paul Stevens have suggested that the attorney general is tampering with the independence of the judiciary.

Chief Justice Burger, himself a conservative, has not openly taken a position on the controversy. At the American Bar Association's annual meeting in London last summer, he did note that constitutional debate had historical roots and that criticism of the judiciary isn't necessarily harmful.

Also, during his tenure as the Supreme Court's top jurist, Burger has consistently voted to give states more leeway in making their own decisions, with minimal interference by the federal judiciary.

For example, in recent rulings, Burger has sided with those who would limit constitutional protections for prisoners and those accused of crimes. This would cut back sharply on rules of evidence and so-called Miranda rights, which have been used to reverse convictions on grounds that rights of the accused were violated.

The chief justice also has backed states' school prayer laws and public-aid programs to parochial schools on the basis of ``accomodating'' religion rather than strict adherence to the First Amendment concept of separation of church and state.

These stances and others deferring to state law might seem to put Burger firmly in the Meese camp.

But so far, the chief justice has confined his states-rights philosophy to certain individual decisions. His call for judicial reform deals mainly with structural rather than ideological changes.

Although both Meese and Burger are calling for reexamination of the judiciary, the former seems to want a basic philosophical adjustment. For example, the attorney general questions whether the so-called ``doctrine of incorporation'' (which, through the 14th Amendment, applies the Bill of Rights to the states) is really in accord with the framers wishes.

Burger, on the other hand, is more interested in practical issues, such as the clogging of federal courts with cases he believes can be handled by the states.

For example, Burger is prodding President Reagan and Congress to move more quickly to fill judicial vacancies created by resignations and retirements. He wants lawmakers to create an ``intercircuit panel'' of judges to relieve the Supreme Court from resolving lower court conflicts in interpreting the law.

Burger also wants Congress to abolish ``mandatory appellate jurisdiction,'' which requires federal courts to decide matters where litigants come from different regions of the country.

The chief justice stresses that such an intercircuit panel could trim about one-third of the Supreme Court's annual workload. He adds that dropping the requirement of mandatory jurisdiction would decrease the federal caseload by an estimated 60,000 cases a year.

Critics of these reforms are concerned the changes would place heavier burdens on states and could have the effect of denying the federal civil rights protections of some litigants.

Meese would seem to have no problem with the latter. He believes that some of the rights laws sweep too broadly now. The chief justice, however, still couches his reasons for reform strictly in terms of effective court administration.

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